Docs applications and deadlines

Question 1

Time limit/ method/ deemed service

Claim form (and particulars of claim attached)

Answer 1

Time limit to send: 4 calendar months after issue of claim
Method: First class post and electronic only if D or legal rep has indicated in writing that it will accept in this way
DEEMED SERVICE: SECOND business day after the step required - e.g. put in post

Question 2

Time limit/method/ deemed service

All other docs:

Particulars of claim (if served separate
Defence (and counterclaim)
Acknowledgement of service
Part 20 indemnity (from defendant)

Answer 2

Time limit: 14 days from deemed service of particulars

Question 3

Deemed service for all other documents - if made via personal service/delivering doc to permitted address/fax or email

Answer 3

If served before 4:30pm on a business day = on that day
After 4:30pm = on the next business day

Question 4

Deemed service for all other docs - posted by FIRST CLASS POST or DX

Answer 4

2nd day after it was posted if that day is a business day. If not then next business day

Question 5

Amendments to statements of case
Grounds BEFORE expiry of limitation and who is it available to? (2 points)

Answer 5

1. After filing but before service = can be made any time
2. After filing and after service = only with
   (a) written consent of all the parties; or if not
   (b) Permission of the court

Question 6

Amendments to statements of case when will the court allow it? After expiry of limitation period (only 3 circumstances)

Answer 6

Court will only allow in 3 circumstances:
1. To add or substitute a NEW CLAIM - if this arises out of the same or substantially the same facts as an existing claim
2. To correct a genuine mistake as to the NAME of a party
3. To ALTER the CAPACITY in which the party claims

Question 7

After acknowledgement of service - how long does defendant have to file a defence?

Answer 7

within 28 days of the deemed service of the Particulars of Claim

Question 8

Grounds for part 18 requests for further information

Answer 8

Court will grant an order if satisfied that the request is confined to matters that are:
1. reasonably necessary and proportionate
3. To enable the applicant to
(A)prepare their case
or
(B) understand the case against them

Question 9

Part 18 request - if successful the party can be ordered to:

Answer 9

1. Clarify any matters in Dispute; or
2. Give additional information on any such matter
   [useful if case has weak prospects of success]

Question 10

Default judgement - when can it be entered

Answer 10

1. The particulars of claim have been served upon the defendant; and
2. The defendant has not filed a defence or acknowledgement of service

Question 11

Amendments to statements of case before expiry of limitation period but after filing and service - what are the grounds if Crts permission is required?

Answer 11

Discretionary grounds:
1. Taking into account the overriding objective [dealing with the case justly and at a proportionate cost]
2. Court will need to strike a balance between (a) injustice to the applicant - if an amendment is refused vs (b) injustice to opposing party or other litigants if permitted.

Question 12

Setting aside default judgement - mandetory ground

Answer 12

1. If the judgement was entered too early (before expiry of the relevant period to file either acknowledgement/defence)
   OR
2. If the claim has already been paid

Question 13

Setting aside default judgement - discretionary ground

Answer 13

1. The defendant has a real prospect of successfully defending the claim [merits of the case]
   or
2. There is some other good reason why the defendant should be allowed to defend the claim [ill or on holiday so couldn’t comply w/ time constraints, pressures of work not enough]

Question 14

Summary judgement can be entered by who and what are the grounds?

Answer 14

The court may give summary judgment against a claimant or defendant on the
WHOLE of a claim or on an ISSUE if:
1. it considers that the party has no real prospect of succeeding on the claim, defence or issue; and
2. there is no other compelling reason why the case or issue should be disposed of at a trial.

Question 15

Other good reason why the default judgement should be set aside - Denton v White test

Answer 15

1. Promptness with which D applied
2. Seriousness of failure to comply
3. Reason for failing to comply
4. Ask court to take into account all the circumstances of the case - e.g.
   * any good conduct from D;
   * Any errors/ misconduct/weakness of C (in the case & procedurally)
   * Any prejudice that D will suffer if the default judgement is not set aside

Question 16

Application to strike out the claim or defence - test/grounds

Answer 16

Applicant needs to show just one of these grounds exist:
1. The statement of case discloses no reasonable grounds for bringing or defending the claim
2. The Statement of Case is an abuse of the courts process/ otherwise likely to obstruct the just disposal of the proceedings; or
3. There has been a failure to comply with a rule or PD/ Court order

Question 17

What orders can the court make for default judgement?

Answer 17

1. Judgement on the claim - Claimant has succeeded & the matter will proceed to enforcement
   - Defendant pays claimants costs
2. Summary application dismissed = case proceeds to trial
   Costs: Loser of the application pays the winner of the app’s cost

Question 18

What orders can court make in respect of summary judgement application?

Answer 18

1. Where the claim may succeed but its improbable - court may make a conditional order
2. Judgement against D (i.e. grant summary judgement to C)
   Costs = named party’s costs so winner pays loser and judgement is entered and proceedings end (subject to enforcement)
3. Dismissal of C’s claim = proceedings end and C pays D’s legal costs
4. Conditional order - requires party to either pay a sum of money into court or take specified step in relation to his claim/defence - dismissal if they dont comply

Question 19

Adding substituting or removing a party - grounds for application made within the limitation period

Answer 19

It is DESIRABLE to:
1. Add a NEW party to resolve matters in dispute; or
2. To romove a party; or
3. To SUBSTITUTE a party where the existing party’s interest or liability has passed to them

Question 20

Adding removing or substituting a party - grounds for application made outside the limitation period [4 points]

Answer 20

1. If the limitation was CURRENT when the proceedings were started; and

Either
2. The original party was named by mistake/
3. The original party has died or subject to a bankruptcy order (and their interest or liability has passed to the new party)
4. The claim cannot property be carried on without the new party